[This petition first came on for hearing on 20th April, 1927 before his Lordship Wallace, J.].

Order

The preliminary decree in a mortgage suit was passed on 18th November, 192

1. The plaintiff died on 25th February, 192

2. On 17th February, 1925 the respondent in the Civil Revision Petition put in an application under Sect. 151, Civil Procedure Code, and Sect. 5 of the Indian Limitation Act, praying that the abatement of the suit be set aside. He claims the mortgage right by virtue of a registered will by the original plaintiff bequeathing it to him. The judgment-debtors contention was the suit had abated three months after the plaintiff was dead and cannot now be revived. The District Munsif held that O. 22, R. 3 did not apply but O. 22, R. 10, that the suit was still pending and that the respondents application was in order and not barred by limitation. The 1st defendant has put in this Civil Revision Petition contending that the District Munsif has erred in law.

The respondent raised a preliminary objection that no Civil Revision Petition would lie because the District Munsif has purported to act under O. 22, R. 10 and orders under that rule are appealable and that since an appeal lies no right to come up in revision can be admitted. To this the petitioner rejoins that as the District Munsifs order is merely that there has been no abatement and does not purport to give or refuse to give leave to continue the suit, no appealable order has been passed. I think this contention must prevail. If the matter had been taken up on appeal, an appellate Court might very well have refused to entertain it on the ground that no order of an appealable nature had been passed. I overrule the preliminary objection.

On the merits, the decision must turn on the question whether or not the suit did abate, three months after the death of the plaintiff; or, as the question presents itself in this case, whether or not a suit can abate or will abate after a decree therein has been passed. There is a direct ruling of this Court on very similar facts in Subbarayudu v. Ramadasu (I.L.R., 45 Mad., 872 [LQ/MadHC/1921/244] = 15 L.W., 309) by a Bench which holds that when a preliminary decree in a mortgage suit has been passed and the plaintiff dies thereafter, an application by his legal representative to be brought on record must be made under R. 3 and not R 10 of O. 2

2. This ruling has been followedwithout discussionby another Bench in Natesa Pillay v. Kannammal (19 L.W., 173). Respondent contends that this ruling requires reconsideration and requests me to refer the matter to a Bench. Subbarayudu v. Ramadasu (I.L.R., 45 Mad., 872 [LQ/MadHC/1921/244] = 15 L.W., 309) refers to a ruling in Bhugwan Das Khettry v. Nilkanta Ganguli (9 C.W.N., 171), a ruling under the old Code where it was held that Sect. 365 (corresponding to O. 22, R. 3) applies only in the case of the death of a plaintiff before decree. I do not myself find that case of much assistance, since I am not able to accept the general principle there laid down that the right to sue may continue even after a final decree. I think it is difficult to maintain that a right to sue continues after a suit has come to an end by a final decree. After the final decree the right to sue has been transformed into a right to execute and by R. 12 of O. 22, R. 3 does not apply to execution proceedings. To allow an application of R. 3 even after a final decree has been passed, would seem under the new Code at least, if not under the old Code, to contradict R. 1

2. On the other side I have been referred to a ruling of the Nagpur Judicial Commissioner reported in Tularam v. Tukaram (64 I.C., 307) and, as at present advised, I am inclined to agree with the arguments therein set out. An argument put forward by the respondent in support of that view is that R. 9 (1) of O. 22, implies that a cause of action does not ordinarily come to an end when a suit abates, since it was necessary to lay down specifically that no fresh suit on the same cause of action is maintainable when a suit has abated. Now a cause of action does not persist beyond the decree in that action, and therefore equally an abatement does not come into being after a decree has been passed. Now, if there is an abatement after decree, the cause of action is continuing after the decree and could be sued on in a separate suit. This would produce an anomalous result. To prevent this result, R. 9 had to be enacted. Beyond this, however, if the cause of action as such is terminated by the decree, it would follow that the right to sue on that cause of action likewise comes to an end, even though for certain purposes the suit continues. In that view O. 22, R. 3 would not apply to a case in which a preliminary decree has been passed and the only rule applicable would be O. 22, R.

10. Under the old Code that certainly would have been the position, and under the old Code the suit would never have abated since the one and only decree in it would have been passed.

It is further contended by the respondent that O. 22, R. 3, cannot apply because he is not a legal representative, being merely a legatee, but that argument would hardly help him if the suit had abated because the true legal representative did not apply in time under R.

3. So this point is not different form the one already dealt with.

For the reasons I have given I am of opinion that the ruling in Subbarayudu v. Ramadasu (I.L.R., 45 Mad., 872 [LQ/MadHC/1921/244] = 15 L.W., 309), does require some reconsideration and I comply with the request of the respondent and refer this case to a Bench for decision, or reference, if it thinks fit, to a Full Bench.

[This petition again came on for hearing on 31st October and 7th November, 1927 before their Lordships Sir C. V. Kumaraswami Sastriar, Kt., and Wallace, JJ.]

The question for decision in this revision petition is whether O. 22, R. 3, Civil Procedure Code, applies to a case where a preliminary decree has been passed in a mortgage suit and the decree-holder dies subsequent to the passing of the preliminary decree and before the final decree is passed. The facts are shortly these:

The preliminary decree in the mortgage suit was passed on the 18th of November, 192

1. The plaintiff died on the 25th of February, 192

2. On the 17th of February, 1925, the respondent in the Civil Revision Petition put in an application under Sect. 151, Civil Procedure Code, and Sect. 5 of the Indian Limitation Act praying that the abatement of the suit be set aside. He claims the mortgage right by virtue of a registered will by the original plaintiff bequeathing it to him. The judgment-debtors contention was that the suit had abated three months after the plaintiff died and cannot now be revived. The District Munsif held that O. 22, R. 3 did not apply, but O. 22, R. 10, that the suit was still pending and that the respondents application was in order and not barred by limitation. The 1st defendant has put in this Civil Revision Petition contending that the District Munsif has erred in law. We are inclined to hold that O. 22, R. 3, does not apply to cases where the law requires successive decrees to be passed and where the death of a party occurs after the passing of the preliminary decree.

The preliminary decree for sale in a mortgage suit declares the amount due to the plaintiff on account of principal and interest and costs calculated up to the date of the decree and where interest is payable declares the rate of interest to be paid until realization. Then it says that if the defendant pays the amount so decreed into Court on a particular date, the plaintiff should deliver the documents and if required transfer the property to the defendant and if necessary give possession. In default of such payment it directs the property to be sold. It then gives liberty to the plaintiff to apply for a personal decree for the balance if any.

It will thus be seen that all the questions in issue between the parties are settled and after the preliminary decree is passed the only question at the time of the passing of the final decree is whether there has been payment as directed. As regards all other matters the cause of action has become merged in the preliminary decree. If the cause of action as such is terminated by the decree it follows that the right to sue on this cause of action likewise comes to an end even though for certain purposes the suit continues. In this view O. 22, R. 3, would not apply to a case in which a preliminary decree has been passed and the only rule applicable will be O. 22, R. 10.

Where a preliminary decree has been passed, it is difficult to see how the death of a party subsequent to the passing of the preliminary decree can wipe out the decree if a legal representative was not brought on record within time and enable the Court to dismiss the suit. In Lachmi Narain Marwari v. Balmakund Marwari (51 I.A., 321 = I.L.R., 4 Pat., 61 [LQ/PC/1924/52] = 20 L.W., 491 (P.C.)) their Lordships of the Privy Council observe:

After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside.

The preliminary decree in that case for partition had been passed and the case was sent back to the Subordinate Judge by the High Court to pass a final decree. As the plaintiff failed to appear on the day appointed by the Subordinate Judge, he dismissed the suit. Their Lordships of the Privy Council set aside the order on the ground that as the preliminary decree had been passed, it could not be affected by any subsequent default of appearance. In Bhatu Ram Modi v. Fogal Ram (I.L.R., 5 Pat., 223) it was held following the decision of the Privy Council in Lachmi Narain Marwari v. Balmakund Marwari (51 I.A., 321 = I.L.R., 4 Pat., 61 [LQ/PC/1924/52] = 20 L.W., 491 (P.C.)) that where a decree for mesne profits had been passed and an application was made for ascertainment of mesne profits, it is not competent to a Court at any stage to dismiss the application, it being beyond its power to dismiss a claim which has already been decreed. In Chandra Shekhar v. Amir Begum (I.L.R., 49 All., 592), the learned Judges observe that after the decision of the Privy Council in Lachmi Narain Marwari v. Balmakund Marwari (51 I.A., 321 = I.L.R., 4 Pat., 61 [LQ/PC/1924/52] = 20 L.W., 491 (P.C.)) they are bound to hold that the provisions of O. 9, R. 3, could not apply after the passing of the preliminary decree so as to entail the dismissal of the whole suit.

It seems to us difficult in principle to distinguish the dismissal of a suit after a preliminary decree has been passed for default of appearance under Os. 9 and 17 and abatement by not bringing a party on record under O. 22 in so far as the effect of such an order on the preliminary decree is concerned. We think where a cause of action has been merged wholly or in part by a decree, it follows that the right to sue on that cause of action comes to an end to the extent to which it has merged in the decree even though the suit may continue for certain other purposes. It is difficult to see how the suit can be said to continue in so far as it relates to that portion of the claim which has been adjudicated upon and in respect of which a decree has been passed. Any abatement can only apply to such part of the cause of action as has still to be adjudicated upon and in respect of which a separate decree has to be passed. In this view it seems to us R. 3 could not apply to cases where successive decrees are required to be passed by the Court and the death of party occurs at a stage subsequent to the passing of the preliminary decree. We think R. 3 contemplates the usual class of cases where matters in dispute are adjudicated upon once for all by a decree and where prior to that date one of the parties dies. In Subbarayudu v. Ramadasu (I.L.R., 45 Mad., 872 [LQ/MadHC/1921/244] = 15 L.W., 309) it was held by Ayling and Venkatasubba Rao, JJ., that O. 22, R. 3 applies to mortgage suits even after the passing of the preliminary decree on the ground that the suit should be treated as pending till the final decree is passed and R. 3 in terms applies to a pending suit. This decision was followed without discussion by Spencer and Odgers, JJ., in Natesa Pillay v. Kannammal (19 L.W., 173). In Manujendra Dull Chowdhury v. Jnan Ranjan Somaddar (87 I.C., 818), it was held that the provisions of O. 22, R. 4 apply both before and after the passing of the preliminary decree. The learned judges were of opinion that although under the old Code it was held that where a preliminary decree had been passed and one of the parties subsequently died, the matter did not fall under Sect. 368 but under Sect. 372, still as the words before decree are omitted in R. 4, it made a difference in the present Code. Greaves, J., observed that though he was first inclined to the view that the first four rules of O. 22 apply to deaths occurring before a preliminary decree had been passed, yet he was constrained to follow Bhutnath Jana v. Tarachand Jana (25 C.W.N., 595). In Bhutnaths case the learned judges were of opinion that until the final decree was passed following the preliminary decree in a mortgage suit, the proceedings must be treated as proceedings in a pending suit and that the consequence was that though a decree-holder can apply within three years for making a preliminary decree final, yet if a judgment-debtor dies he will have to come in within six months (it is now 90 days under the new Code) to make his heirs liable. In All Bahadur Beg v. Rafullah (I.L.R., 49 All., 310) the view of the Madras High Court was followed. As the decision of the Privy Council in Lachmi Narain Marwari v. Balmakund Marwari (51 I.A., 321 = I.L.R., 4 Pat., 61 [LQ/PC/1924/52] = 20 L.W., 491 (P.C.)) was passed subsequent to the decisions of this Court in Subbarayudu v. Ramadasu (I.L.R., 45 Mad., 872 [LQ/MadHC/1921/244] = 15 L.W., 309) and Natesa Pillay v. Kannammal

(19 L.W., 173), we are of opinion that these cases require reconsideration.

We refer the following for the decision of a Full Bench:

Whether O. 22, Rr. 3 and 4, Civil Procedure Code, apply to cases of death after the passing of a preliminary decree

[This petition came on for final hearing on 3rd February, 1928, before a Full Bench constituted as above.]

Murray Coutts Trotter, C J.

[1] The short point in this case arises in this way. The plaintiff obtained a preliminary decree in a mortgage suit on the 18th November, 192

1. He then died on the 25th February, 1922, before a final decree had been passed. No application had been made or acceded to within three months of the plaintiff s death to add his legal representatives to the record. It is contended that in the circumstances the suit must be deemed by the provisions of Order 22, Rule 3, to have abated. The question referred to us is whether on a proper construction of the authorities that is the true position. The most illuminating principle which should guide us appears to me to be contained in the case of Chapman v. Day (1883) 48 L.T. 907 tried before Pollock, B., and Justice Lopes, J., and the passage that appears to put it very shortly is contained in the judgment of Lopes, J.

It is said that, the defendant having died, the maxim Actio personalis moritur cum persona applies, I think it does not apply in such a case as this. I think action means right of action and if that is the true way of looking at it, the right of action here had been determined before the death of the defendant.

[2] Applying that principle, it would appear that the right of action as there defined by the learned Judge is determined by a preliminary decree because the final decree is only by way of working out in detail the principles laid down and determined in the preliminary decree. The decision in Chapman v. Day (1883) 48 L.T. 907 has been followed and applied in this country in the case of Gopal v. Ramachandra (1902) I.L.R. 26 B. 597. There was a difference of opinion at the outset, then Crowe, J., was called in and he based his judgment on the decision in Chapman v. Day (1921) I.L.R. 45 M. 872 : 42 M.L.J. 30

1. In Madras a contrary view seems to have been taken and there is no doubt about it that Subbarayudu v. Ramadasu (1921) I.L.R. 45 M. 872 : 42 M.L.J. 301 is a definite position adverse to the respondents in this reference. The learned Judges who referred this case to us thought that by implication the authority of Subbarayudu v. Ramadasu (1921) I.L.R. 45 M. 872 : 42 M.L.J. 301 had been very much shaken by the Privy Council s decision in Lachmi Narain Marwari v. Balmakund Marwari (1924) L.R. 51 I.A. 321 : I.L.R. 4 Pat. 61 [LQ/PC/1924/52] : M.L.J. 441 (P.C.). Without discussing that case in detail, it seems clearly to proceed on the basis that a preliminary decree determines the rights of the party and that the rest, whatever it be, assessment of damages, working out of accounts and so forth is a mere subsequent defining of the effect that is to be given to the declaration of right which is contained and finally determined (subject, of course, to appeal) in the preliminary decree. We think that the principle underlying that case where after preliminary decree the plaintiff did not appear when the case came on for final decree and the case was struck out, a course which the Privy Council disapproved on the grounds we have mentioned, applies by analogy just as much to a case where a man does not appear because he cannot appear since he is dead. In our opinion all that is really important in these matters is to have a settled rule of practice. The present case is obviously a casuo omissus from the Code of Civil Procedure and probably nobody had thought of providing for it. In these circumstances all that is important is that we should endeavour to formulate the most logical rule we can and follow as best we may the nearest analogies. We therefore think that Subbarayudu v. Ramadasu (1921) I.L.R. 45 M. 872 : 42 M.L.J. 301 is no longer good law and we must answer this reference by saying that in our opinion Order 22, Rules 3 and 4 do not apply to the present state of circumstances. The case will be referred back to the Division Bench with that opinion.